Can Obama’s Legal End-Run Around Congress Be Stopped?

The Constitution, many of us learned in grade school, assigns the legislative power to the legislative branch, not the executive. The Constitution also commands that the president “take care that the laws be faithfully executed.” Unfortunately, President Obama either missed that lesson or considers it inapplicable to his own administration. Thus, his promise-cum-threat, made in the heat of last year’s campaign: “Where Republicans refuse to cooperate on things that I know are good for the American people, I will continue to look for ways to do it administratively and work around Congress.”

Obama has delivered on his promise and worked around Congress with breathtaking audacity. In his signature legislative achievement alone, the Affordable Care Act, the president has unilaterally amended the law multiple times, including delaying the employer mandate and caps on out-of-pocket expenses, waiving the individual mandate for certain people, extending tax credits to individuals who purchase insurance through the federal health insurance exchange and ignoring a statutory requirement that Congress and their staff participate in the exchanges. But the president’s audacity doesn’t stop with Obamacare. He has also suspended immigration law, refusing to deport certain young illegal aliens—a major reform that Congress has refused to enact. Similarly, with the stroke of a magisterial pen, he has gutted large swaths of federal law that enjoy bipartisan support, including the Clinton-era welfare reform work requirement, the Bush-era No Child Left Behind law and the classification of marijuana as an illegal controlled substance.

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So much for the separation of powers.

In a desperate attempt to stem the hemorrhaging of legislative power, members of Congress are turning to the courts to enforce their constitutional prerogative. Sen. Ron Johnson (R-Wisc.), for example, filed a lawsuit last week challenging the president’s decision to exempt Congress from the exchanges. And Rep. Tom Rice (R-S.C.) is plotting a broadside attack on executive lawlessness through a resolution, called the Stop This Overreaching Presidency (STOP), that would authorize the House to legally challenge several presidential workarounds. Congressional friend-of-the-court briefs have been popping up in numerous lawsuits challenging Obama administration overreach.

But Congress’s ability to reclaim its powers through litigation faces a substantial roadblock in the form of a presumption against congressional “standing.” Standing is a constitutional prerequisite to maintaining a case in federal court; without it, a case is quickly dismissed. A plaintiff has standing when he or she can demonstrate a concrete, particularized injury, caused by the defendant, which can be remedied by a court. Abstract injuries suffered by society at large do not suffice.

The Supreme Court seemed to shut the door to congressional standing in Raines v. Byrd (1997), a lawsuit brought by six congressmen who challenged the constitutionality of the presidential line-item veto. The court held that the congressmen lacked standing, because the loss of congressional power they lamented was a “wholly abstract and widely dispersed” injury.

The post- Raines presumption against congressional standing is appropriate as a general matter. It is not desirable to allow a single member of Congress, or an ad hoc group of members, to challenge any presidential action with which they politically disagree. Such lawsuits would be abstract, inefficient and potentially destructive to the president’s legitimate authority.

But Raines is best understood as establishing only a presumption against congressional standing that can be rebutted in the right circumstances. Indeed, there are powerful reasons why members of Congress should be permitted to sue the president when the situation warrants.

First, standing should not bar enforcement of the separation of powers when there are no other plaintiffs capable of enforcing this critical constitutional principle. In Raines itself, for example, the court knew that other plaintiffs, who possessed standing, were waiting in the wings to sue the president. Indeed, in the subsequent case of Clinton v. City of New York (1998), standing was established by several businesses, individuals and a city that had lost tax benefits, and the court then declared the line-item veto unconstitutional.

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David Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. He practices appellate litigation with particular focus on constitutional law at Baker Hostetler LLP and represented the 26 states that challenged the constitutionality of Obamacare.

Elizabeth Price Foley is professor of constitutional law at Florida International University College of Law. She is the author, most recently, of The Tea Party: Three Principles.